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ObamaCare On Trial

Posted By Jacob Laksin On November 15, 2011 @ 12:42 am In Daily Mailer,FrontPage | 21 Comments

Since its passage in 2010, the Obama administration’s sweeping health care overhaul has been wrangled over in the media and in the courts. Now ObamaCare will face a reckoning before the nation’s highest court. After much anticipation, the Supreme Court on Monday agreed to consider a challenge to the law brought by 26 states. The hearing, scheduled for March, promises to be a tough test for the legislation, starting with a showdown over its central and most polarizing provision: the so-called individual mandate to purchase health insurance.

At issue is whether Congress has the constitutional power to compel individuals to purchase health insurance and to force them to pay a penalty if they refuse. Opponents insist that it does not. They argue that the mandate is a flagrant violation of individual liberty and that in passing it Congress has exceeded its authority to regulate interstate commerce. Endorsing that view are several state court decisions. In 2010, a Virginia court ruling struck down the mandate provision of the law. Florida’s Federal District Court followed suit last January, finding both the mandate and the health care law unconstitutional. Most recently, this August a U.S. appeals court in Atlanta ruled that the mandate was unconstitutional.

Despite those defeats, the Obama administration has not backed down. For the administration, the mandate is the cornerstone of the health care bill. Without the mandate’s forcing Americans to purchase insurance, for instance, it would be difficult to sustain other provisions of the law, among them provisions that insurance companies accept all applicants and disregard pre-existing conditions. As such, the mandate is the key to the administration’s vision of “universal” health care coverage. Never mind that even with the mandate, the legislation will still not achieve universal coverage, since 23 million will remain uninsured. Nonetheless, given the centrality of the mandate to the bill, it’s not surprising that the administration is determined to fight to keep it.

It could not have dented the administration’s confidence in prevailing in this fight that last week a respected conservative judge in the U.S. Court of Appeals for Washington D.C. ruled to uphold the mandate. In a curiously defended decision, Laurence Silberman, a Reagan appointee who authored the 2008 decision that ended Washington’s D.C.’s gun ban, ruled that while the individual mandate “certainly is an encroachment on individual liberty,” it is nonetheless constitutional. Silberman likened the mandate to “a command that restaurants or hotels are obliged to serve all customers regardless of race.”

As critics were quick to note, this was a strange argument. Among other issues, the health care law was not forcing businesses to sell a product, but rather forcing customers to buy one – a government intrusion that many have described as unprecedented. Indeed, such reasoning, if accepted, potentially opened up the prospect of unlimited government power to direct commerce. Silberman’s colleague on the D.C. court, justice Brett Kavanaugh, raised that troubling possibility. In his dissenting opinion, Kavanaugh pointed out that if this reasoning was valid there was nothing to stop Congress from requiring “mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance” too.

Compelling as that objection is, the fact that a conservative justice upheld the mandate on constitutional grounds suggests that, even with a conservative majority on the Supreme Court, a defeat of the mandate and, of ObamaCare with it, is far from certain. There are also questions about the propriety of Justice Elena Kagan taking part in the hearings. As a solicitor general in 2010, Kagan wrote emails delighting over ObamaCare’s passage, famously exulting that it was “simply amazing” that the bill had passed. She may also have helped the administration mount a defense of the law. Citing that conflict of interest, ObamaCare’s foes would like to see Justice Kagan recuse herself from the hearings.

Those hoping for a quick decision from the court, meanwhile, are likely to be disappointed. In agreeing to hear the case, the Supreme Court left open the possibility that it could defer judgment about any challenges to ObamaCare until 2014, when the universal mandate goes into effect. If the court decides to defer its ruling, there would be no way to strike down ObamaCare in the immediate future.

While that could be a setback for ObamaCare’s many opponents, there is also a possibility of a comprehensive defeat of the law. The Obama administration has argued that most of the law’s provisions are not tied to the individual mandate and should be allowed to stand even if the mandate is found unconstitutional. The Supreme Court however has agreed to hear arguments on whether the rest of the legislation should be voided along with the mandate. It could yet be the case that all of ObamaCare, and not just the individual mandate, will be on trial.

Given the Obama administration’s notable lack of domestic policy achievements, the reversal of its one major legislative victory would be disastrous. And while such a ruling likely won’t come any time soon, the Supreme Court’s willingness to hear the challenges to ObamaCare ensures that, if nothing else, there will be a healthy debate about the proper limits of government power. That alone wouldn’t bode well for ObamaCare.


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